State v Yabari [2018] PGNC 227; N7306 (14 June 2018)

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CRIMINAL LAW – Particular offence – Manslaughter – Guilty Plea – Court not bound by sentencing guidelines – Sentencing discretion to impose a lesser sentence – Aggravating & Mitigating factors and circumstances - Extenuating circumstances – Gravity of the offence – Sections 302 & 19 of Criminal Code.

Antap Yala v The State (1996) SCR 69
Avia Aihi v The State (No 3) [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
Jack Tanga v The State (1999) SC602
Kumbamong v The State [2008] PNGSC 51; SC1017
Manu Kovi v The State (2005) SC789
State v Karo N2600 of 29 April 2004
State v Lossio John CR. No. 2012
State v Mema [2012] PGNC N3602
State v Roho, N4483 of 24 August 2006
The State v Samuel Kalib; CR, No. 318 of 2013
State v Watakasi [2012] PGNC 266; N4597

1. NUMAPO AJ: This is a decision on sentence. The accused was indicted on one count of Manslaughter under section 302 of the Criminal Code and pleaded guilty to the charge and was convicted accordingly.

2. The facts to which the prisoner pleaded guilty to are that; On the 7^th of October 2014, between the hours of 6:30am and 8:00am at New Camp Settlement in Bulolo, Morobe Province, the prisoner unlawfully killed another person namely, Kelly Maima. The prisoner was intoxicated with some homebrewed alcohol and approached the deceased and swore and argued with him. The prisoner punched the deceased on his chest and the deceased fell to the ground. The deceased started shivering and vomited blood and was taken to the Bulolo hospital where he was pronounced dead. He died from heart attack brought on by stress and anxiety as a result of a physical assault.

3. The offence of manslaughter carries the maximum penalty of Life Imprisonment under section 302 of the Criminal Code.

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

5. Section 19 of the Criminal Code gives the court a wider sentencing discretion to impose a lesser sentence in place of the maximum penalty prescribed by law.

6. The offence of Manslaughter carries life imprisonment however, it is trite law that the maximum penalty is reserved for the worst type case. See Goli Golu v The State [1979] PNGLR 653 and Avia Aihi v The State (No 3) [1982] PNGLR 92.

7. The most recent Supreme Court case of Manu Kovi v The State (2005) SC 789 sets out the guidelines for Manslaughter as shown in the table below:

Category	Description	Details	Tariff
1	Plea - Ordinary cases – Mitigating factors with no Aggravating factors	No weapons used – Little or no pre-planning - Minimum force used – Absence of strong intent to do GBH	8 – 12 years
2	Trial or Plea – Mitigating factors with Aggravating factors	Use of offensive weapons used such as a knife etc.– vicious attack – multiple injuries-some pre-planning involved	13 – 16 years
3	Trial or Plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence	Dangerous weapons used, eg. gun, axe etc. – vicious attack – multiple injuries - pre-planning – some deliberate intention to harm – little or no regard for human life.	7 – 25 years
4	Worst Case – Trial or Plea – special aggravating factors – no extenuating circumstances- no mitigating factors or mitigating factors rendered completely insignificant by the gravity of the offence	Pre-meditated attack- some of viciousness and brutality – some pre-planning – killing of innocent, harmless person – complete disregard for human life.	Life Imprisonment

8. A number of case laws similar to the present case were also cited by both the State and the Defence in their respective submissions on sentence. It shows the current trend on sentencing in manslaughter cases. I refer to some of them below:

9. A 28 year old man pleaded guilty to manslaughter for killing his mother by kicking her in the abdomen after he became angry over her actions in chasing his sister down a cliff during which his sister sustained injuries. The deceased died of a ruptured spleen and other internal injuries.

The court found that there was no intervening cause of death and that the offender solely responsible for the death and his was not a youthful offender. He was sentenced to 10 years imprisonment.

10. The offender was a security guard at a club. The deceased was drunk and walked in while refusing to pay a gate fee of K2.00 charged by the club. An argument broke out which led to a fight between the offender and the deceased. The deceased punched the prisoner on his left ear. The prisoner returned the punch and hit him on his face and the deceased fell. The prisoner then pulled him up by his shirt and threw him out of the gate. That caused the deceased to land hard on the ground and raptured his enlarged spleen which led to his death.

The court found that the prisoner was sober and therefore knew what he was doing and that he could have decided not to harm the deceased. It then sentenced him to 8 years imprisonment.

11. The prisoner was drinking with the deceased’s grandson when a fight broke out between them. The deceased intervened to stop the fight when the offender hit her on the head with a folded fist. She fell unconscious and died instantly.

12. The prisoner was charged with manslaughter for killing his maternal uncle. The circumstances giving rise to the case was that the prisoner was drunk and was in the company of other drunken youths. One of the drunken youths went and caused some damage to the deceased’s house. The prisoner went to stop the youth and a fight broke out between them. Whilst they were fighting the deceased returned from his garden and without finding out first who caused the damage to his house, he assumed that the prisoner was the one who caused damage to his house so he hit him on his head with a piece of firewood. The prisoner fell unconscious and the deceased continued to hit him. The prisoner got up and ran away and the deceased chased after him. The prisoner picked up a stone and threw it at the deceased. The stone hit the deceased and he fell down and died a few minutes later. The medical report showed that he died of a ruptured spleen.

In sentencing the prisoner the court took into account that K5, 000 and 2 pigs was paid as compensation and sentenced the offender to 7 years less his pre-sentence custody.

13. The offender, a 24 year old female pleaded guilty to one count of manslaughter for hitting the deceased on his head with a piece of wood to prevent him from assaulting her. The deceased is the cousin of the prisoner who was upset that the prisoner’s mother and sisters were keeping a piglet which he has already sold to another person from another village. The deceased got drunk and went to the prisoner’s house and assaulted her mother and retrieved the piglet. He then returned and slapped the prisoner three times. The prisoner got a piece of firewood and hit him and he died. Compensation of K5, 000 and a pig valued at K600 was paid as compensation to the deceased’s relatives. She was sentenced to 6 years with 5 years suspended.

14. The prisoner was at the market with her husband waiting for a PMV to go to Lae. Whilst they were waiting her small sister who was newly married to the deceased ran to her as she was beaten by the deceased with a fan belt. The deceased followed her to where they were sitting and the prisoner told him not to hit her sister. The deceased without saying a word took out the fan belt from his pocket and hit the prisoner three times on her head. The prisoner retaliated by hitting him once on the side of his head with a piece of wood. The deceased died of a fractured skull as a result. The prisoner pleaded guilty and was sentenced to 6 years imprisonment.

15. The seriousness of the offence is determined by its own peculiar facts being; the aggravating and mitigating factors and circumstances and the extenuating circumstances. See: Antap Yala v The State (1996) SCR 69 and Jack Tanga v The State (1999) SC602.

16. In the present case, the following factors and circumstances are taken into account:

17. The prisoner was drunk and went to the premises of the deceased and argued with him for no apparent reason. The altercation quickly developed into fight between the prisoner and the deceased. Some of their relatives intervened and broke up the fight. The prisoner and the deceased were then taken away by their relatives. The prisoner could have easily gone home and that would have been the end of the matter but he chose not to and wanted to finish what he started. A few minutes later, the prisoner suddenly turned around and charged towards the deceased and punched him twice on his chest and the stomach area. The deceased fell down and started shivering and vomited blood. He was rushed to the hospital but was pronounced dead on arrival. The post mortem report revealed that he died of heart attack brought on by stress and anxiety as a result of a physical assault. The deceased also has a pre-existing medical condition called the ‘congested pulmonary vein’ and this may have also contributed to his demise.

18. This was an unprovoked assault that subsequently led to the death of the deceased. The prisoner was under the influence of liquor and was upset with the deceased apparently over a house currently occupied by the deceased and his family according to the two eye witnesses; Francis Kawale and John Kaupa in their respective statements to the police.

21. I conclude that the mitigating factors and the extenuating circumstances outweighs the aggravating factors and substantially reduces the seriousness of the offence. The factual circumstances of the present case does not place the case in the category of worst offence to warrant a long custodial sentence. The State submitted that the appropriate sentence should be between 8 – 12 years imprisonment which falls under category 1 of the Manu Kovi guidelines. The Defence submitted however, that this was not a worst case and given the peculiar circumstances of this case the prisoner is not to be solely blamed for the demise of the deceased as the deceased had a pre-existing medical condition of a congested pulmonary vein that may have triggered the heart attack when he was punched by the prisoner on the chest. Defence submitted that a head sentence of 5 years imprisonment is reasonable under the circumstances.

22. I remind myself that each case must be decided on its own merits. And based on the observations made thus far, I agree with the Defence that peculiar circumstances of this case does not warrant a long custodial sentence. Also, I am not bound by the Manu Kovi guidelines or any other sentencing guidelines for that matter, to impose a sentence within the range of the proposed sentencing tariff. The wider sentencing discretion given to me under section 19 of the Criminal Code allows me a greater flexibility to consider even a lesser sentence than those proposed under the guidelines. This was made clear by the Supreme Court in Kumbamong v The State [2008] PGSC 51; SC1017.

23. Accordingly, in the exercise of my sentencing discretion, I impose a lesser sentence as follows:

Orders Accordingly,
__________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Defence

National Court of Papua New Guinea

State v Yabari [2018] PGNC 227; N7306 (14 June 2018)